Acting as the guardian of a minor is one of the most important roles a person ever fulfills. Along with taking on that responsibility, you may be trying to navigate stressful and emotionally-charged family dynamics or to simply make room in your daily life for related new duties.
There are heavy implications that come with being a guardian, and the process isn’t always easy to navigate. Hopefully the following blog post will help you better understand what it means to be the guardian of a minor, and in what situations it might be necessary to apply for guardianship.
What is guardianship?
A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect the person or estate of a minor.
Historically, guardianships were established for the protection of orphans, and guardianship of the minor's person (care, custody, and control) was combined with guardianship of the minor's estate. This is still a common scenario.
NOTE: California differs from many other states in that many states use the term "guardianship" to refer to a court proceeding that appoints one person to make personal decisions for another (e.g., medical care, living arrangements) and use "conservatorship" to refer to a proceeding that appoints a person to manage another's finances. However, California uses "guardianship" to refer to both personal (guardianship of the person) and financial decisions (guardianship of the estate) in regard to a minor, while "conservatorship" is used when the subject of the proceeding is an adult.
Two Types of Guardianships
Guardianships of the person are most often used to protect minors whose parents are still living. These guardianships are usually established by relatives or other caring adults to provide stability and needed care for minors whose parents are unable to provide these essentials for them.
Petitions for guardianship of the person are usually accompanied by a petition for temporary guardianship, which implies an immediate need for intervention to protect the child either from neglect, or from being suddenly removed from their home and the person with whom they’ve formed an emotional bond.
In a guardianship of the person, the probate court appoints a person or persons to have custody of a minor. A probate guardian of the person is responsible for the following:
Determining where the minor lives;
Making sure that the minor is properly fed, clothed, and sheltered;
Supervising the minor's conduct;
Making sure that the minor is enrolled in school; and
Making sure that the minor has proper medical care.
Guardianships of the estate commonly are sought when a minor inherits significant assets.
The relationship between a guardian and the minor is a fiduciary relationship, meaning that the guardian must act in the minor’s best interest.
In a guardianship of the estate, the probate court appoints a guardian (either a person or an entity) to manage a minor's property. In general, a probate guardian of the estate has a duty to
Control and preserve estate property
Segregate guardianship estate property from other property including the guardian's own personal assets
Avoid conflicts of interest, including using estate property for personal gain or taking part in any transaction in which the guardian doesn’t have the minor’s best interest in mind
Hold the minor's property for the minor's benefit until the minor reaches 18 years of age.
Common Scenarios in Which Guardianship May Be Necessary
Orphans. These guardianships are often uncontested. Through a guardianship, caregivers can provide for a minor without termination of parental rights, as is required for adoption. Guardianship is most frequently used with relatives, but can also be granted to non-relatives.
Prevention of abuse or neglect. Another common scenario is a proceeding equivalent to a juvenile dependency in which it’s alleged that guardianship is needed to prevent abuse or neglect of the minor.
In some areas, it’s common for child protective service agencies to encourage family members (e.g., grandparents) to file for guardianship to avoid initiation of a dependency proceeding. Sometimes, these are uncontested, but other times, they can become bitter court battles.
The minor has lived and bonded with a non-parent adult. Another common scenario is that the parents have left the child with someone else to raise for so long that the child has bonded with the surrogate family, but then the parents decide to resume custody. It’s usually difficult for parents in this situation to accept that the court will focus on the child’s emotional needs first, rather than the fitness of the parents.
Technical change of custody. The fourth common scenario for a guardianship involves the parties' desire to change technical custody. For example, the minor may be living with the mother and her mother (the child's grandmother), the mother is unemployed, and the grandmother can have the minor added to her health insurance if she is the legal guardian. However, sometimes the mother will want some kind of guarantee that the guardianship will be terminated whenever she wants. Courts cannot make these agreements because the only standard a court can apply for termination is whether it is in the minor's best interest.
You should have time to focus on being the guardian, not jumping through numerous hoops to establish official guardianship. Getting help from a skilled guardianship attorney to organize and present your case to the court and help you reach the right outcome.
We’re available to help. To schedule a consultation, call Santaella Legal Group, serving San Ramon, Danville, Dublin, Pleasanton, the Tri-Valley and Bay Area at (925) 831-4840.